2 Hagedorn r. Oliverson, 2 m. & s. 485.

8 Foster V. Bates, 12 u. & w. 226 ; Lyell V. Kennedy, 14 App. Cas.

437.

* Wilson V. Tumman, 6 M. & G. 236.

6 Brainerd V. Dunning, 30 n. Y. 211.

В« As to whether he can withdraw his assent before ratification, see

post, В§ 38.

"> Yet it must not be supposed that ratification is a contract. It is an

election to regard a prior acceptance by an unauthorized agent as the

assent of the principal. Metcalf v. Williams, 144 Mass. 452.

BY RATIFICATION. 47

be summarized as follows : (1) The assent may be express or

Implied. (2) Silence is not (ordinarily) assent. (3) Assent

must be in toto and unconditional. (4) Assent must be free

from mistake or ignorance as to facts, and from fraud. A

further consideration involves the question : (5) Has the third

party a right to recede before ratification by the principal ?

§ 34. — (1.) Assent may be express or implied.

Except in cases where a particular form is necessary, the

ratification may be either by express words or by conduct.

All that the law requires is such a manifestation of the intent

of the principal to adopt the act of the agent as would lead

the ordinarily prudent man to conclude that the principal has

assented. The main difference between the two methods is in

the nature of the proof offered to establish the ratification.

One other difference has to do with the question whether the

principal knew all the material facts when he manifested his

assent. If he has expressly adopted the act there may be a

presumption that he has either learned all the material facts

or has learned all he cares to know of them, and has deliber-

ately assumed the risk as to the others ; ^ while if he has

Impliedly adopted the act, the conduct relied on to establish

the assent must have a greater or less probative force accord-

Ing as the principal knows or does not know the facts to

which his conduct is sought to be related.^ While, therefore,

the knowledge of the principal of the material facts connected

with the transaction is a material element in ratification,^ the

difficulties of establishing such actual knowledge increase or

diminish according as the ratification is by conduct or by

words.*

(1) Express Ratification. Express ratification, like express

authority, may ordinarily be in any form, parol or written, and

if written, sealed or unsealed.^ Where, however, a prior

^ Kelley v. Newburyport Horse R., 141 Mass. 496.

2 Combs ('. Scott, 1-2 Allen (Mass.), 493.

8 Post, В§ 37.

♦ Hyatt V. Clark, 118 N. Y. 563.

6 Ante, В§ 2G.

48 FORMATION OF AGENCY

authority would require to be in any particular form, a subse-

quent ratification must be in like form. This general rule is

subject to some qualifications to be considered hereafter.^ It

seems that an express ratification must be addressed to the

other contracting party, or intended to be communicated to

him ; a mere declaration to a stranger is not sufficient.^

(2) Ratification hi/ Conduct. Any conduct by the principal

which would lead a reasonable man to conclude that the prin-

cipal is manifesting an intent to be bound by the agent's

contract will be deemed a ratification. This conduct may

assume an endless variety of forms. Only a few of these

can bo here mentioned by way of illustration. By accei)ting

benefits under the contract, a principal will be held to have

ratified it. "No rule of law is more firmly established than

the rule that if one, with full knowledge of the facts, accepts

the avails of an unauthorized treaty made in his behalf by

another, he thereby ratifies such treaty, and is bound by its

terms and stipulations as fully as he would be had he

negotiated it himself." ^ By bringing an action on the con-

tract, a principal will be held to have ratified it, whether the

action be against the third person or against the agent for

the proceeds of the contract.* Ratification may be after

action is brought by another in the name of the one ratify-

ing.^ Where A has received the rents of property for years

without authority, an action by the owner for an accounting

is a suflicient ratification to render A an agent as from the

beginning.^ By promising to pay the agent's commissions

1 Post, В§ 40.

2 Rutland, &c. R. v. Lincoln, 29 Vt. 206.

8 Strasser v. Conklin, 54 Wis. 102; Hyatt v. Clark, 118 N. Y. 563;

Pike V. Douglass, 28 Ark. 59; Thomas v. City N. B., 40 Neb. 501;

Wheeler, &c. Co. v. Aughey, 144 Pa. St. 308.

* Bank of Beloit v. Beale, 34 N. Y. 473 ; Partridge v. White, 59 ^le.

564; Frank v. Jenkins, 22 Oh. St. 597; Merrill v. Wilson, 66 Mich.

232; Benson v. Liggett, 78 Ind. 452; Ferguson v. Carrington, 9 B. &

C. 59.

6 Ancona v. Marks, 7 IL & N. 686. Contra, Witteubrock v. Bellmer,

57 Cal. 12.

В« Lyell V. Kennedy, 14 App. Cas. 437.

BY RATIFICATION. 49

after full knowledge of the unauthorized contract, the princi-

pal ratifies the act.^ Even an express declaration of repudia-

tion of the contract may be overcome by subsequent conduct,

but the proof should be clear and decisive.^

§ 35. — (2) Ratification by silence.

It is a general rule in the law that silence does not give

consent,^ and this is modified only by the consideration that

in some special circumstances good faith may require a man

to speak or be thereafter estopped by his silence. In the

application of these principles to the doctrine of ratification it

is necessary to distinguish at the outset between an unauthor-

ized act by one who has no authority to act at all, and a like

act by one who has some authority to act but who has

exceeded his authority.

(1) Unauthorized Act hy Stranger. Mere silence by one

in whose behalf a stranger has assumed to act would not

probably be sufficient evidence of ratification, although, in

connection with other circumstances, it might be some evi-

dence.* Circumstances may also be present, which, coupled

with the silence of the supposed principal, would lead a

reasonable man to believe that an agency did in fact exist.

In such a case a duty seems to be laid upon the supposed

principal to speak in order not to mislead the third party to

his injury.^ The question is after all one as to the sufficiency

and not the kind of evidence, and it is clear that silence in

one set of circumstances would not have the same evidential

force as in another set of circumstances. " It is one thing to

say that the law will not imply a ratification from silence, and

a very different thing to say that silence is a circumstance

from which, with others, a jury may imply it."*^

1 Gillett V. Whiting, 141 N. Y. 71.

2 Coriiwal V. AVilson, 1 Ves., Sr., 509; City of Findlay v. Pertz, 66

Fed. Rep. 427.

3 Royal Ins. Co. v. Beatty, 119 Pa. St. 6.

* Ward V. Williams, 26 III. 447 ; Philadelphia, &c. R. v. Cowell, 28 Pa.

St. 329.

5 Heyn v. O'llagen, 60 Mich. 150; Saveland i;. Green, 40 Wis. 431.

* Phil. &c. R. V. Cowell, supra.

4

60 FOUMATION OF AGENCY

(2) Unauthorized Act hy Agent. Where an agent exceeds

his authority, and the principal, after knowledge of the trans-

action, remains silent, such silence may in itself be sufficient

evidence of ratilicalion.^ In some eases it may amount to

conclusive evidence of ratification.^ The evidential force of

the silence is much greater and more cogent where an agency

actually exists than where the act is that of a stranger,

because the circumstances of the case demand more impera-

tively that the principal should speak. The time wiihin

\vhich he nuist speak is to be determined by the facts of the

case. It must be a reasonable time after he learns of the

miauthorized act.'^

В§ 36. - (3) Assent must be in toto and unconditional.

The principal must ratify the whole act or disaffirm the

whole. He cannot ratify as to a part and disaffirm as to the

rest.* A mail cannot take the benefits of a contract without

bearing its burdens.^ The principle is fundamental and axio-

matic. Accordingly the ratification of ])art of a transaction

operates as a ratification of the whole.*^ So also ratifying an

unauthorized act or transaction is a ratification of torts that

may have been committed in the doing of it.''

§ 37. — (4) Assent must be free from mistake or fraud.

In order that the ratification may be binding it is necessary

that it should be genuine, that is, it must be the free and

intelligent act of the principal. Several circumstances may

1 Fothergill v. Pliillips, L. R. G Ch. App. 770; Kent r. Quicksilver

Mining Co., 78 N. Y. 159; Mobile, &c. Ry. r. Jay, G.'j Ala. 113.

2 Lee V. Fontaine, 10 Ala. 755; Jones v. Atkinson, G8 Ala. 167; Alex-

ander V. Jones, 64 Iowa, 207.

8 Mobile, &c. Ry. v. Jay, sitpra.

* Smith V. Iloilson, 4 T. R. 211 ; Brigham r. Palmer, '\ Allen (Mass.),

450; Eberts c. Selover, 44 Midi. 519; Mundorff v. Wickersham, G:] Pa.

St. 87; Billings v. IMason, 80 Me. 49G.

6 Bri.stow V. Whitmore, 9 H. L. Cas. 391, 404; Rudasill v. Falls, 92

N. C. 222.

" Wilson c. Poulter, 2 Str. 859 ; Bristow v. Whitmore, 9 II. L. Cas.

391.

^ Dempsey c. Chambers, 154 Mass. 330.

BY RATIFICATION. 51

intervene to prevent the reality of the assent, the chief among

these being mistake and fraud.

(1) Mistake. The most obvious ground of mistake is that

the principal ratified the act believing certain facts to exist

when in reality the facts were otherwise. " The general rule

is perfectly well settled, that a ratification of the unauthorized

act of an agent, in order to be effectual and binding on the

principal, must have been made with a full knowledge of all

material facts, and that ignorance, mistake, or misapprehen-

sion of any of the essential circumstances relating to the

particular transaction alleged to have been ratified will absolve

the principal from all liability by reason of any supposed

adoption or assent to the previously unauthorized act of an

agent." ^ While the rule is clear that the principal must

know all the material facts before the ratification will become

binding, or, rather, that upon discovery of his mistake he

may avoid the ratification, the application of the rule calls

for some additional consideration. The first is that the

principal may choose to ratify knowing that he is ignorant

of all the circumstances. In such a case he assumes the

risk with knowledge of his ignorance, and is not misled or

deceived.2 The second consideration is that, where the agent

was authorized to act, but departed from his instructions,

there is a presumption that the principal knows all the facts.

This presumption grows out of the doctrine of agency, —

that the knowledge of the agent is the knowledge of the

principal, since it is the duty of the agent to disclose to his

principal all the facts connected with the agency. ^ This con-

sideration would not prevail where the act was that of a

stranger, nor is it admitted as correct in all cases of un-

authorized acts by agents.* The third consideration is that

it is not necessary that the principal should have knowledge

1 Combs V. Scott, 12 Allen (Mass.), 493; Lewis v. Read, 13 M. & W.

834; Freeman v. Rosher, 13 Q. B. 780.

2 Kelley v. Newburyport Horse R., 141 Mass. 496; Lewis i-. Read,

supra ; Fitzmaurice v. Bayley, 6 El. & B. 868.

В« Meehaii v. Forrester, 52 N. Y. 277; Hyatt v. Clark, 118 N. Y. 563.

Post, В§ 141.

* Combs V. Scott, 12 Allen (Mass.), 493.

52 FORMATION OF AGENCY

of all collateral circumstances so long as lie has knowledge

of the main transaction.^

(2) Fraud. If the principal is induced to ratify the con-

tract by the fraud of the third party he can, of course, avoid

the ratification.^

^ 38. — (5) Has the third party a right to recede before ratification?

It is a disputed question whether the third party who

has entered into a contract with an unauthorized agent

has a right to recede from the contract at any time before

ratification.

In England it is held that he has not a right to recede on the

ground that the contract with the agent binds the third party,

though it does not bind the principal, and that a subsequent

ratification by the principal relates back to the time when the

contract was formed, and places the parties in tlie same posi-

tion as if the agent had had prior authority.^ " It comes to

this, that if an offer to purchase is made to a person who

professes to be the agent for a principal, but who has no

authority to accept it, the person making the offer will be in

a worse position as regards withdrawing it than if it had been

made to the principal ; and the acceptance of the unauthor-